Is a tribunal able to order disclosure of document which would, if given by a party, be contrary to s.19(5) Anti-Terrorism Crime & Security Act 2001 ('ATCSA')?
No, held the EAT in Northampton Borough Council v Wolstenholme.
Ms Wolstenholme was dismissed by Northampton BC for taking secondary employment. This employment also led to an HMRC investigation. On 29th May 2018, the employment tribunal ordered Northampton BC to deliver to Ms Wolstenholme, all documents to and from HMRC relating to her, albeit they could be redacted as necessary.
S.19(5) ATCSA prevented Northampton BC from further disclosing information obtained by it from HMRC pursuant to subsection 19(2) except in certain circumstances and with the consent of the Commissioners of HMRC. Northampton BC sought advice from HMRC who confirmed the information sought could not be disclosed. A copy of HMRC's email was forwarded to the tribunal with a request for written reasons but no reasons were given.
On appeal, the EAT set the disclosure order aside, finding that making an order which had the result of a public body breaching the law is clearly an error of law and a failure to provide reasons was a further error of law.
Thanks to Barnaby Large of No.18 Barristers Chambers for preparing this case summary.